IN THE HIGH COURT OF ESWATINI
HELD AT MBABANE CASE NO. 504/2014
In the matter between
SWAZILAND DEVELOPMENT AND
SAVINGS BANK PLAINTIFF
SWAZILAND PERISHABLE FOODS
WHOLESALERS (PTY) LTD 1ST DEFENDANT
THANDI MAZIYA 2ND DEFENDANT
Neutral Citation: SWAZILAND DEVELOPMENT AND SAVINGS BANK v SWAZILAND PERISHABLE FOODS (PTY) LTD & ANOTHER (504/2014)  SZHC 129 (03 AUGUST 2021)
Coram : MAMBA J.
Heard : 13 NOVEMBER, 2020
Delivered : 03 AUGUST, 2021
Civil law – Application for summary judgment – Rule 32 (4) (a) of the rules of Court. Defendant resisting summary judgment must show a bona fide defence or that there is an issue in dispute which ought to be referred to trial. Defendant contesting multiple unexplained debits in bank statement. This is a triable issue and summary judgment refused.
 This is an application for summary judgment. It is opposed by both defendants.
 This application was heard or argued before me on 13 November 2020 and judgment was reserved. Regrettably, the file or Court record was erroneously returned to the Registry and was thus not placed on my desk as one of those that were awaiting judgment before me. It was not until last month that this matter was brought to my attention and steps were taken to rectify the error.
 By summons dated 09 April 2014, the plaintiff sued the defendants, jointly and severally for the following relief; namely:
‘(a) Payment of the sum of E10,884,347.92 ----
(b) Interest [on the sum in (a)] at the rate of prime plus 3% per annum
a tempore morae;
(c) Declaring that the mortgage Bond referred to herein is perfected;
(d) Declaring the property being portion 158 of portion 147 farm No.
50, Ezulwini, Hhohho District, Executable;
(e) Costs of suit between Attorney and his own client scale;
(f) Collection commission.’
 In its particulars of claim, the plaintiff states that on or about 11 April 2011 and at Mbabane, it entered into a written agreement with the 1st defendant whereby the plaintiff lent and advanced a sum of E9,090,323.99 to the 1st defendant. The loan was for a period of eight (8) years with effect from the date of signature of the loan agreement (referred to as a Finance Facility Agreement). The plaintiff was represented by its duly authorised officers whilst the defendant was duly represented by the 2nd defendant, during the execution of the said agreement.
 In terms of the loan agreement, the 1st defendant agreed to pay a monthly instalment of E149,000.00 in liquidation of the loan. A sum equal to the prime lending rate plus 3%, compounded monthly was to be charged or levied on the sum owing from time to time. As security for the loan, the 1st defendant executed a surety mortgage bond in favour of the plaintiff over the property mentioned in prayer (d) above. The plaintiff states further that
‘8. On or about the 24th June 2008 the 2nd defendant bound herself together with the 1st defendant in a suretyship agreement in which agreement she bound herself as a surety and co-principal debtor in solidium with the 1st defendant,’ and she renounced the several benefits and relevant legal exceptions applicable to the loan and her status as a married female person. These allegations would appear to suggest that the suretyship agreement was entered into before the loan agreement. Nothing, however, turns on this apparent conflict in this application. (SB4, which is the suretyship agreement does not appear to be dated).
 The plaintiff states further that it discharged or honoured all its obligations in terms of the loan agreement, however, the 1st defendant failed to honour its corresponding obligations and only made part payment in the sum of E2,165,165.53 and was at the material time in arrears in the sum of E4,084,614.24. This prompted the plaintiff to cancel the agreement, foreclose, the securities and demand payment of the full amount claimed, which includes a sum of E189,000.00 for the untimely or early termination of the agreement. Due to this default by the 1st defendant, the 2nd defendant in her capacity as surety and co-principal debtor with the 1st defendant, is liable for the amount due to the plaintiff by the 1st defendant. This is thus the basis of the plaintiff’s claim.
 Also to be noted is the allegation made by the plaintiff that at no stage did the 1st defendant deny its indebtedness to the plaintiff as stated herein but, on the contrary, the 1st defendant acknowledged such indebtedness and requested for an extension or rescheduling of the loan agreement. The total amount claimed, which is due and payable, is that in prayer (a) above.
 Following the filing of their Notice of Intention to Defend the action by both defendants, the plaintiff has filed this application for summary judgment; stating that the defendants have no bona fide defence to the action and have filed this Notice of Intention to Defend solely for purposes of delaying the action. This is, however, denied by the defendants.
 First, the defendants state that the certificate of balance submitted by the plaintiff is at variance with the amount reflected in the bank statement issued by the plaintiff and therefore, whilst the certificate of balance constitutes prima facie evidence, it is substantially contradicted or controverted by the said bank statement. Secondly, the defendants allege that the statement issued by the plaintiff reflects, on analysis, that the amount due is E8,601,908.97 instead of E10,884,347.92. (See pages 41-46 of the Book of Pleadings.
 The defendants further point out that although the loan agreement was for a sum of E9,090,323.92, the bank statement only reflects a sum of E8,142,332.70. This discrepancy, it is alleged, ‘has an effect on the interest levied---‘ and that this amount was followed by a disbursement of E37 477.04; making a total of E8,179,809.74. Again, from the bank statement supplied, the defendants aver that the 1st defendant made repayments totalling E3,521,427.53 instead of the sum of E2,165,165.53 stated by the plaintiff (per paragraph 14 of its particulars of claim). Needless to say that this dispute has, in no small measure, an effect or impact on the amount due and also the total arrears.
 The defendants further contest the sum of E189,000.00 as a penalty for the early closure of the loan account. Defendants aver that this is not provided in the relevant loan agreement and has been unilaterally and unlawfully debited to the account by the plaintiff. Besides these debits, the defendants also aver that there are numerous unexplained debits which require an explanation by the plaintiff as such debits adversely or prejudicially affect the loan account and in particular the actual amount due to the plaintiff by the defendants. Lastly, the defendants state that the 1st defendant was allowed, over a long period, by the plaintiff to make monthly instalments (repayments) which were less than the E149,000.00 stipulated in the agreement and thus the plaintiff is estopped from complaining that the 1st defendant failed to stick to the terms of the loan agreement in this respect. There is, of course, no merit in this assertion, as the agreement clearly states that any such indulgence, would not constitute a waiver of the plaintiff’s rights to demand and expect full compliance with the terms of the agreement.
 It is hereby recorded that whilst the plaintiff did file a reply to the defendants’ opposing affidavit, this was later withdrawn, by consent. Therefore, the matter was heard on the two sets of affidavits; Founding and opposing or answering.
 The plaintiff’s affidavit in support of this application is the customary scant and bare one. In substance, it has no facts in support thereof, whereas that filed by the defendants in resisting the application refers to specific pertinent issues concerning the amount claimed by the plaintiff. Whilst it may be readily accepted that the defendants have not denied that they are indebted to the plaintiff at all, they have equally not admitted any specified amount. The plaintiff has not been able to satisfy this Court on what amount, if any, is not contested or proven as due and payable to it by the defendants.
 The issue of summary judgment and in particular what a defendant opposing or resisting an application for summary judgment needs to aver to successfully defend it, has been the subject of discussion in numerous judgments before this Court and the Supreme Court. Vide Central Bank of Swaziland v. Yamthanda Investments (Pty) Ltd (59/2014)(B)  SZSC 11 (30 June 2016) Parazo, Dulux Printers (Pty) Ltd v Apollo Services (Pty) Ltd (72/2012)  SZSC 19 (31 May 2013) paragraph 18-21, Swaziland Revenue Authority v Webster Print (Pty) Ltd  SZHC 165 (09 August 2013) at paragraph 18 and Swaziland Tyre Services v Sharp Freight (Swaziland) (381/2012)  SZHC 74 (01 April 2014) and Guard Alert Security Services v UNITRANS Swaziland Limited (1842/2013)  SZHC 384 (27 October 2014).
 From the above facts and applicable law and legal principles, it is clear to this Court that the defendants have raised a triable issue pertaining to the actual amount due to the plaintiff. If proven at trial, it would constitute a defence to at least a portion of the claim. That being the case, the application for summary judgment cannot succeed and is hereby refused. Costs are to be costs in the main action.
FOR THE PLAINTIFF: MR. S. V. MDLADLA
FOR THE DEFENDANTS: MR. S. M. MASUKU